Campaigners want to outlaw the form of voyeurism, but doing so could have unexpected consequences, argues Edward Grange and Jemma Sherwood-Roberts.

Plans to outlaw the intrusive practice of “upskirting”, or secretly photographing underneath women’s clothing, are a welcome development, but it could raise difficult legislative issues.

David Lidington, the justice secretary, announced the proposal in response to one victim of the practice, Gina Martin. She organised an online campaign for upskirting to be criminalised when police did not prosecute a man whom she accused of taking photographs of her on his phone.

Whatever the reasons for the police inaction, Martin’s campaign is justified: there is no specific legislation that covers this behaviour as it does not neatly fit into the category of voyeurism.

With these cases, it is usual that offences are charged in respect of the behaviour in question. Those who have been caught upskirting in public have previously been convicted of outraging public decency.

The difficulty with the current law is that different tests are required to be satisfied before a jury can be sure that they should convict. For example, the offence of outraging public decency criminalises lewd, obscene or disgusting behaviour committed in public, but requires for the act to have taken place in the presence of two or more people.

Therefore, it is possible that a woman could be in a public place on her own and have this act carried out and the police would not be able to pursue the matter further. Furthermore, the offence of outraging public decency does not fall under the sex offenders’ notification requirements, while a voyeur convicted under section 67 can be made subject to notification if the sentence passed is over a certain threshold or if the victim is under 18.

The problem with legislating further is how this might be restricted to capture the type of behaviour that people find offensive. If restricted to the definition of upskirting, future legislation might not capture inappropriate photographs of cleavage, for example.

Would this risk opening the floodgates of prosecutions to capture the type of behaviour that MPs, when debating the Sexual Offences Act in 2003, were so keen to avoid? It could, for example, potentially criminalise the behaviour of paparazzi taking “accidental” shots of celebrities showing their underwear.

It is not an easy line to draw.

This article was originally published in The Times Law Brief and can be accessed here.